Mater semper certa est
The Latin legal proverb Mater semper certa est (“the mother is always safe”) refers to the mother in the legal sense. Thereafter, the mother of the child is always the woman who gave birth to it. This makes it easy to determine motherhood.
Since phenomena such as egg donation , surrogacy and in vitro fertilization have only existed for a short time, this rule appeared to be error-free at the time of its creation, at least when it was clear which woman had given birth to the child. An exception is the case that is dealt with in Bertolt Brecht's parable on the Caucasian chalk circle , which goes back to a judgment of Solomon ( 1 Kings 3 : 16–28 EU ): two women argue about a child and both claim it was born to have. Motherhood is also unknown among foundlings (for example those who are placed in a baby flap ).
In response to new reproductive techniques, contemporary law had to solve the problem of who is considered a mother if the birth does not occur through the genetic mother. In 1992, a new § 137b, now § 143 , was inserted in the Austrian General Civil Code (ABGB) : "Mother is the woman who gave birth to the child." The German Civil Code (BGB) followed in 1997 with § 1591 : "Mother a child is the woman who gave birth to it. "
The Latin legal ruling goes further. After the earlier simple statement about the person of the mother comes the real legal problem, namely the determination of the father. Actually, the following applies: Pater semper incertus est (“the father is always uncertain”), because for the father there is no external evidence of paternity that is equivalent to the birth of the child. There is always the possibility that someone other than the husband is the true father. In order to prevent such legal uncertainty, it goes on to say: Pater est, quem nuptiae demonstrant (“Father is whoever has been proven to be such by marriage”). This means: With regard to the children created during an existing marriage, the mother's husband is considered to be the father of the children as long as the husband's paternity has not been successfully challenged in court through a paternity contestation suit (formerly: matrimonial contestation suit ). The Latin rule thus continues to correspond to the legal situation according to today's § 1592 No. 1 BGB or § 144 Para. 1 Z 1 ABGB. However, this legal presumption is no longer accepted without question: fathers want to use a paternity test ( DNA analysis ) to obtain clarity about their genetic paternity and the resulting maintenance obligations - keyword “ cuckoo child ”.
